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Legal Citation, “… Lawyers Tolerate the Most Ridiculous Waste”

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I was trying out an app for the bookmarking service Pinboard recently and happened upon this note on legal citation that I’d saved a few years back. This topic comes up periodically on Slaw including Louis Mirando‘s great post on the 8th edition of the McGill Guide from 2014.

I’d completely forgotten about this note and thought it would be interesting to share as we start another new school …

In the introduction to Frank G. Bennett‘s 2013 book on Mulitlingual Zotero (MLZ), “Citations: Out of the Box” http://citationstylist.org/public/mlzbook.pdf* Lawrence Lessig said the following: “… lawyers tolerate the most ridiculous waste, because no one within the law seems tasked with the job of eliminating it.”

And legal citation via The Bluebook is the example Lessig uses:

“Legal citation is a perfect instance of this more general flaw. The dominant citation manual, The Bluebook, is a brilliant embarrassment. Hundreds of pages long, with thousands of abbreviations, and convoluted rules specifying, among other things, typeface variations — the system seems designed to punish paralegals, or first year associates. Of course, it was not designed with those purposes. And it is maintained by smart and decent souls aiming to do the best they can. But whatever its virtues when invented, the system is an embarrassment in the 21st century. As anyone remotely familiar with the capabilities of modern information technology recognizes, the idea that humans spin brain cycles conforming to these rules is simply absurd. In 1974, things may have been different. In the days before computers, a complex reference manual may have made sense. But everything these citation manuals do computers could do better. The human brain was not invented/evolved/created (you pick) to waste its time with silliness like this.”

So what do you think? Is a “complex reference manual” for legal citation a wasted effort? Are we ready to move on and let the “capabilities of modern information technology” take care of this for us?

* many thanks to the Internet Archive for capturing this now defunct link!

Comments

  1. Sheila Handler
    September 3rd, 2018 at 9:46 am

    I agree that legal citation seems in many ways to privilege form over function.
    However, in facta the goal is to make things easier for our already overburdened judges. We need to cite to pinpoint references but also in such a way that the judge can use the citation in a decision. So there needs to be some uniformity. I’d hate to make the judge have to spend time looking up a proper citation so s/he is not embarrassed by his/her own decision.
    I like the new neutral citations but since I didn’t learn them in law school I always need to have a student or junior finalize all my citations and footnotes, which in some cases takes days. I need to budget for it in my drafting process. This does seem like a pointless effort until you consider that the end product may be much more useful to the intended audience: the judge. Also striving to be perfect is generally a good advocacy technique, even if unachievable, particularly in my case. If this were all easier it would certainly be great for everyone.

  2. F. Tim Knight
    September 4th, 2018 at 1:12 pm

    Thank you for your comment Sheila. I agree, legal citation makes things easier for judges and anyone working in/with the law. But I think Lessig’s point here, or at least a component of his thinking, is that computers/machines could do a better job creating these citations rather than leaving it for humans to wrestle with.

    Frank Bennett, the author of the book that Lessig’s foreword appears, certainly recognizes the value of legal citation especially in a system that has become “heavily reliant on electronic text retrieval and associated systems”:

    “Electronic library systems require unique, uniform identifiers for machine-driven referencing. In the U.S. jurisdiction, and in many others, citations originally written for people serve this purpose. We impose rigid rules on their construction—to an extent that interferes with other work—because a looser approach could cause the cross-referencing on which our fragile information infrastructure depends to completely fall apart.”

    And as he also notes, and something you alluded to when you said you “always need to have a student or junior finalize … citations and footnotes, which in some cases takes days”, because the law is dynamic and legal relationships are complicated, legal citation is both complex and difficult.

    So a system that can create legal citations for us like the Multilingual Zotero (MLZ) platform, that Bennett is describing in his book, is something that could help eliminate the waste that Lessig refers to in the foreword.

    As he later adds:

    “By building and implementing an open source uniform citation method, Frank Bennett radically simplifies the process of citation, and encourages a generation of innovation on top of his own. With these tools, one can cite more simply today. And with the platform launched today, this process will only get simpler still. There will be a day when lawyers will no longer even remember that their legal education included memorizing when small caps versus italics was required, or how “legal” gets abbreviated.”

    In 2015 MLZ became Juris-M which is now a “standalone program.”

    Looks like it’s time to take another look at Bennett’s work. :-)